R3 v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Stuart-Smith LJ,Moylan LJ |
| Judgment Date | 17 February 2023 |
| Neutral Citation | [2023] EWCA Civ 169 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-001616 |
[2023] EWCA Civ 169
Lord Justice Moylan
Lord Justice Stuart-Smith
and
Lady Justice Elisabeth Laing
Case No: CA-2021-001616
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Special Immigration Appeals Commission (Cheema-Grubb J, Upper Tribunal Judge O'Connor and Mr Roger Golland)
SC/150/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey KC and David Sellwood (instructed by Duncan Lewis Solicitors) for the Appellant
Rory Dunlop KC and Natasha Barnes (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 18 January 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 17 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 30 May 2013, the Appellant (‘A’) travelled to Turkey. He did not book a return journey. He then went to Syria. On 24 May 2017, the Secretary of State gave notice of her intention to make an order (‘the Order’) depriving A of his British citizenship on the grounds that it was conducive to the public good so to deprive him (‘the Decision’). The Secretary of State's reason for the Decision was her assessment that A had aligned himself in Syria with a group which was aligned to Al Qaeda (‘AQ’). A appealed to the Special Immigration Appeals Commission (‘SIAC’) against the Decision.
SIAC made three decisions in A's case, which I will refer to as decisions 1, 2 and 3. In decision 1, SIAC held that the effect of the Order was that it did not make A stateless. In decision 2, SIAC refused A's application to amend, or to ‘vary’ his grounds of appeal. In decision 3, SIAC dismissed A's appeal. A applied for permission to appeal against those three decisions, on seven grounds.
SIAC (Supperstone J, sitting alone) made decision 2 after an oral hearing, the application to amend having first been refused on the papers. A had applied to amend his grounds of appeal to SIAC so as to argue that the Decision was contrary to article 8 of the European Convention on Human Rights (‘the ECHR’) because there was a risk of arbitrariness, and at the time of the Decision, it was not foreseeable enough to be ‘in accordance with the law’ (‘the Gillan ground’).
I considered the application for permission to appeal to this Court on the papers. I was the judge who, in 2019 in SIAC, on the papers, had refused A permission to amend his SIAC grounds of appeal. I therefore asked the Court of Appeal Office to check whether the parties objected to my considering the application for permission to appeal to this Court. They did not object.
I then gave A permission to appeal on one ground only, that decision 2 was wrong. I recognised that a successful challenge to decision 2 might have implications for the lawfulness of decision 3. I therefore asked A, if he wished to, to apply to amend his grounds of appeal, to explain briefly in the proposed amendment what he said those implications were. I also asked the parties to deal, in their skeleton arguments, with the implications of the success of the challenge to decision 2. I also suggested that A should be ready to defend the merits of his application to amend at the hearing of the appeal, in case this Court decided that they were relevant to the exercise of the power to permit amendments, and decided to the deal with that issue itself.
As I explain in paragraph 45, below, A applied at the hearing of the appeal for permission to amend his grounds of appeal. As I also explain in paragraph 46, below, a further issue, whether SIAC was right to hold, in decision 3, that article 8 did not apply when the Secretary of State made the Decision, arose in the course of the hearing.
Paragraph references are to decisions 1, 2 or 3, as the case may be, unless I say otherwise, or, if I am considering an authority, to that authority.
On this appeal, Mr Southey KC and Mr Sellwood represented A. Mr Dunlop KC and Ms Barnes represented the Secretary of State. I thank counsel for their written and oral submissions.
For the reasons I give below, I have reached three conclusions.
i. A was not within the jurisdiction of the United Kingdom when the Decision was made and article 8 did not, therefore, apply, as SIAC rightly held in decision 3.
ii. Supperstone J did not, in decision 2, err in law in refusing A permission to vary his grounds of appeal.
iii. If either of those conclusions was based on an error of law, any such error was immaterial.
The facts
I have taken this summary largely from decision 3 and from A's skeleton argument.
A was born in London in 1979. His parents were both British citizens by naturalisation. Before the Decision, A held Pakistani and British citizenship. He went to schools in Leytonstone. He graduated from the University of Westminster with a BSc in computing. He became more interested in Islam towards the end of his university career. He grew a beard and listened, for example, to Imam Anwar al-Awlaki's sermons. He worked as a gas engineer for the father of his cousin, B3. Some of his associates were members of Al-Muhajiroun. Three were made the subject of control orders. Two were reported to have been killed in drone strikes in Pakistan. It is clear that SIAC considered that A had, in his oral evidence, downplayed those associations (paragraphs 47 and 122).
A's father died in 2017. His mother, two brothers and sister all live in the United Kingdom. He married his first wife in April 2003. I shall refer to her, as SIAC did, as ‘W1’. They had four children who were born between January 2006 and December 2012. W1 and those four children all live in the United Kingdom. A and W1 separated before A left the United Kingdom on 30 May 2013.
By August 2017 A spoke to his four children in England once a month or once every six weeks. By November 2020 he was speaking to his four children in England once a week when they visited his mother. W1 did not facilitate contact between them but consulted him about things like medical treatment and schooling (paragraph 102).
A now lives in Turkey with his second wife. I shall refer to her, as SIAC did, as ‘W2’. W2 is a Syrian national. A married her in April 2015. They now have two children. Their daughter was born in 2016. Their second child was born after November 2020. All A's children are British citizens, apart from the youngest. Neither W2 nor their daughter speaks English (paragraph 101).
A's case is that he began loading aid convoys for Syria in 2011. He then decided to go to Syria; on his case, to provide humanitarian aid. He booked a one-way ticket to Turkey and left the United Kingdom on 30 May 2013. He crossed the border into Syria.
On 24 May 2017, the Secretary of State gave notice that she intended to deprive A of his British citizenship on the grounds that it was conducive to the public good. Her assessment was that A had aligned himself in Syria with a group which was aligned to AQ. She was satisfied that A was a Pakistani national, so that an order depriving him of his citizenship would not make him stateless. She made an order to that effect on 26 May 2017.
A stayed in Syria until 27 August 2017, when he went to Turkey. He was accused by the Turkish authorities of being a member of Daesh (ISIS) and of entering Turkey illegally. He was detained in prison on 27 August 2017 and then in immigration detention. When he asked for consular assistance, he was told that the Secretary of State had deprived him of his citizenship.
The prosecutor in Turkey eventually decided that an intelligence report was an inadequate basis for a prosecution (paragraph 85). A was released from immigration detention in February 2019.
In the meantime, A appealed to SIAC against the Decision, on 11 April 2018. His grounds of appeal included a denial of the Secretary of State's allegations against him. He denied that he was a threat to national security. His case was that he wanted to do humanitarian work in Syria. He argued that it was not proportionate to deprive him of his (British) EU citizenship when no other state would recognise him as a national, so that he would not have the benefit of citizenship of any state, that the Decision was not proportionate as there were less intrusive ways of achieving the same aim, and that it amounted to a disproportionate interference with his article 8 rights and with those of his family.
On 7 December 2018 SIAC held that the order did not make A stateless (decision 1). On 29 January 2019, SIAC directed A, among other things, to file and serve any amended grounds of appeal and any applications by 28 June 2019 (‘the directions’). In a document dated 3 June 2019, A applied for permission to amend his grounds of appeal, and asked for information about decisions made by the Secretary of State since 2011 to deprive people of their citizenship on the grounds that it would be conducive to the public good.
The Gillan ground, in more detail, was that the Decision was an unlawful breach of A's article 8 rights because there were ‘insufficient safeguards to avoid discrimination and there is a clear risk of arbitrariness ( Gillan v United Kingdom (2010) 50 EHRR 45). In addition, at the time of [A's] alleged actions, deprivation of citizenship was not sufficiently foreseeable ( Gillan). The decision is therefore not “in accordance with the law” ( R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368) and the appeal falls to be allowed ( Charles (human rights appeal: scope) [2018] UKUT 89 (IAC))’. In his skeleton argument in support of the application to vary his grounds of appeal, A also relied on paragraph 104 of R (MS (India)) v Secretary of State for the Home Department [2017] EWCA Civ 1190; ...
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